HKSAR v. Lau San Ching and Others

HCMA000098/2002

HCMA 98/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 98 OF 2002

(ON APPEAL FROM ESCC 1484/2001)

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Coram: Hon Lugar-Mawson J in Court

Date of Hearing: 16 December 2002

Date of Judgment: 14 March 2003

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J U D G M E N T

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Background

1.On 26 November 2001, after trial before Mr William S W Ng, Permanent Magistrate, at Eastern Magistrates Court, the Appellants were convicted of an offence of causing an obstruction in a public place, contrary to s. 4(28) of the Summary Offences Ordinance, Cap. 228. They faced this charge jointly. The particulars of offence were:

"LAU San-ching, CHAN Kwok-leung, LAM Sum-shing, CHUI Pak-tai, FAN Kwok-wai Gary, KWONG Kwok-chuen Cosmas and WONG Chung-ki Eric, you are charged that on the 7th day of May, 2001 at Golden Bauhinia Square, 1 Expo Drive, Wanchai, in Hong Kong, without lawful authority or excuse did an act, namely chaining themselves up with metal chains and padlocks to a flagpole erected at the Golden Bauhinia Square outside Phase II of the Hong Kong Convention and Exhibition Centre, whereby obstruction, whether directly or consequentially, might accrue to a public place."

2.The 5th and 6th Appellants were in addition charged with and convicted of the offence of "Failing to produce proof of identity", contrary to sections 17C(2) and (3) of the Immigration Ordinance, Cap. 115.

3.All seven Appellants now appeal against their convictions. Mr Wong Hin Lee, leading Mr Jeremy S K Chan, represents them. Mr Daryl Saw SC, Deputy Director of Public Prosecutions leading Mr Anthony Cheang, Senior Government Counsel, represents the Respondent.

Facts

4.The Golden Bauhinia Square, which is situated outside the Hong Kong Convention and Exhibition Centre, is a public place. By it are two flagpoles set on a podium. The regional flag of the HKSAR Government flies on the west flagpole and the national flag of the People's Republic of China flies on the east flagpole. Each day since 4 April 1999 the national flag and the regional flag have been raised at 8:00 a.m. and lowered at 6:00 p.m. This ceremony is carried out by a party of five police officers in accordance with an internal police order.

5.Sometime in the afternoon on 7 May 2001, each of the seven Appellants chained themselves with metal chains and padlocks to the west flagpole. Three banners bearing political messages were on display, one of which read in Chinese "Hunger strike to protest against appointment of the Chief Executive by Imperial edict".

6.According to Sergeant 22270, who was the officer in charge of the ceremony at 6:00 p.m. on 7 May 2001, it was necessary for the podium to be clear of people so that the ceremony could be carried out with dignity and decorum and in accordance with the internal police order.

7.Station Sergeant Cheung Siu Wai approached the Appellants at about 2:40 p.m. The 1st Appellant claimed to be the person responsible for the group of demonstrators, and told Station Sergeant Cheung Siu Wai that they were there for a hunger strike.

8.At about 3:30 p.m., Mr Chan Wing Kee, a Director of Operations at the Exhibition Centre, approached the Appellants, served them with a document entitled "HKCEC Management Procedures for Consideration and Approval of Requests to Show Public Expressions of Opinion on the Private Property of The HKCEC" informed them that the place was under the Exhibition Centre's management, and asked them to leave. They refused to do so.

9.At about 4:03 p.m., Senior Superintendent Hunt, through an interpreter, told the 1st Appellant that the Exhibition Centre's management said they were trespassing and wanted them to leave. Senior Superintendent Hunt also told the 1st Appellant that the Centre could use reasonable force to remove them. He asked whether they would leave peacefully, but should the 1st Appellant say they were not going to, he would have to believe that a breach of peace was going to occur. He then gave the 1st Appellant 10 minutes to consider the matter.

10.Senior Superintendent Hunt returned to the podium at about 4:22 p.m. He reiterated what he had said earlier, and asked the 1st Appellant whether he would leave peacefully. He told the 1st Appellant that if they refused to leave, he believed that there would be a breach of peace when the Exhibition Centre's staff started to remove them and he would be arrested for that. He also warned the 1st Appellant that if there was resistance to the arrest, they would be obstructing police officers in the due execution of their duty. Before the translation of what Senior Superintendent Hunt was saying was finished, the 1st Appellant replied "No".

11.At about 4:23 p.m., Inspector Ng Wai Kee and a party of Emergency Unit officers were sent to free the Appellants. The police asked the Appellants if they had the keys to the padlocks, a negative reply was given. Inspector Ng and his officers then cut-off their chains with metal cutters, after which officers of Police Tactical Unit removed each of the Appellants in turn from the podium to a police vehicle.

12.It was not in dispute that; the Appellants carried out their protest peacefully. Apart from chanting slogans, the Appellants did not use any abusive language. No damage was caused to the Golden Bauhinia Statue. No scheduled event was hindered by the protest. No member of the public complained about the Appellants' actions to the Exhibition Centre's management or the police. It was also accepted that the Police did not inform the Appellants that the flag lowering ceremony was due to take place at 6:00 p.m. and no warning was given to them that their presence might obstruct the ceremony.

13.PC 58697 was the officer who removed the 5th Appellant from the podium and took him to the police vehicle. In the vehicle, he twice asked the 5th Appellant for his identity card, but the 5th Appellant failed to respond to the officer's request. The 5th Appellant was subsequently taken to Wanchai Police Station for an interview. There he again refused to produce his identity card. He only produced it after the officer had explained to him that his identity card was needed for record processing purposes.

14.PC 128 was the officer who removed the 6th Appellant from the podium to the police vehicle. In the vehicle he twice ignored the officer's demand that he produce his identity card.

15.Only the 5th and 6th Appellants elected to testify. There were no other defence witnesses.

16.The 5th Appellant, who is a full time District Board member, said the podium had been chosen to stage their demonstration because it was conspicuous and had a good flow of people. They had chained themselves to the flagpole, firstly to attract the media's attention, and secondly to "...symbolise that the right of Hong Kong people to elect their Chief Executive had been restrained". He said that they refused the requests for them to free themselves and leave because they had the right of assembly and the right to express their political views under the Basic Law and the Bill of Rights Ordinance, and those rights should not be interfered with by anyone at will. The hunger strike, he said, "...was to symbolise the painful process of attaining their political objectives". There was no definite plan on how long they would remain on the podium. Their objective was to send out their political message through the media. They would therefore consider the question of when to leave after the reporters took their photographs and interviewed them. However, the Exhibition Centre's staff and the police interrupted their interview with the media.

17.The 5th Appellant said that had not intended to stay chained to the flagpole for very long because he had to return to work at his office. He said that he did not know there was a ceremony at 6.00 p.m. and believed that none of the other defendants knew that either. The police had not told them about it. Had the police done so, the others and he would have discussed the matter with the police and adjusted their plan, as they had done in other demonstrations in the past. He said they had no intention of obstructing the ceremony.

18.In cross-examination, the 5th Appellant disagreed with the prosecutor's proposition that the police would have been unable to approach the flagpole with the Appellants chained to it.

19.The 6th Appellant, who is also a full-time District Board member, gave similar evidence to the 5th Appellant. He said he would have left before 5.00 p.m. as he had to meet with his constituents. In cross-examination, he said that the hunger strike was flexible in that nothing had been said about its duration and who would remain behind at the podium. He also said the duration of the hunger strike was not important as it was something that was symbolic. He could have continued with his hunger strike after he left the podium. He disagreed with the prosecutor's suggestion that the police officers would have been unable to approach the flagpole with them chained to it. He said that had the police discussed the ceremony with them, they would, perhaps, have moved aside and made room for the police officers who were to carry it out. He declined to rule out the possibility that they might have unchained themselves to make room for the ceremony to take place.

20.In respect of the 2nd charge, the 5th Appellant said that after an Emergency Unit officer cut off his chain, he just sat on the podium and made no response. The police then lifted him up and carried him to a police van. There an officer told him to sit down, but did not ask for his identity card. There was no declaration that he was under arrest and he was not cautioned. When the van arrived at Wanchai Police Station the arresting officers immediately took the other defendants and he to a cell. After the police officers left, he took off the chain that was around his waist. A while later the arresting officers entered the cell and the same officer who had spoken to him earlier asked him for his identity card, the chain, the padlock and key. He handed them over. A few minutes later, the same officer handed him back, through the cell's bars, his identity card, together with a Notice to Persons in Custody.

21.In respect of the 3rd charge, the 6th Appellant said that no one asked him to leave the podium. He did not resist when he was removed from the podium and no one asked that he produce his identity card. On arrival at the police station the other Appellants and he were immediately placed in a cell. When an officer asked him for his identity card he produced it at once. Soon after it was handed back to him through the cell's bars, together with a Notice to Persons in Custody.

Grounds of appeal

22.The grounds of appeal of all of the Appellants are that the Magistrate:

(1) erred in law in ruling that s. 4(28) of the Summary Offences Ordinance created and/or imposed a strict liability offence.

(2) having apparently accepted that there was a discrepancy between the English and Chinese authenticated texts of s. 4(28), in that the word "may" is not in the Chinese text and that the Prosecution had conceded that the Defendants would not have a case to answer if the Court relied on the Chinese text, proceeded to hold that the word "may" was inadvertently omitted from the translation. It is said that the Magistrate should have resolved the conflict, between the two texts in favour of the Appellants and held that only obstruction actually accrued and/or caused would suffice in proving the offence. This Court's decision in R v Tam Yuk Ha [1996] 3 HKC 606 is relied on;

(3) was wrong in law in convicting the Defendants of the s. 4(28) offence as no actual obstruction was caused to the flag lowering ceremony or would have been caused had the Appellants remained chained to the flagpole. Alternatively, even if they had remained chained to the flagpole, there was a reasonable doubt whether they would have potentially caused any obstruction to the flag lowering ceremony; and

(4) was wrong in law, and on the facts, in holding that "...the rights under Articles 16 and 17 of the Bill of Rights Ordinance and the issues in this case were entirely different matters" in that he was wrong:

(a) not to find that the Defendants were carrying out a political demonstration or protest;

(b) to have ignored or failed to give any, or sufficient, weight to the fact that the Appellants were carrying out a political demonstration or protest at the Statue; and

(c) to hold that the Appellants' acts were not protected by Articles 16 and 17 of the Hong Kong Bill of Rights Ordinance, Cap. 383, and Article 27 of the Basic Law.

23.Generally it is said that that all seven Appellants' convictions on the s. 4(28) offence are unsafe and unsatisfactorily in all the circumstances of the case.

24.The 5th and 6th Appellants' ground of appeal against their conviction under s. 17C of the Immigration Ordinance is that the Magistrate ought to have found that s. 54(2)(a) of the Police Force Ordinance, Cap. 232 was applicable, thereby precluding the application of s. 17C.

25.I will deal with each of the grounds of appeal in turn.

1st Ground of appeal

26.I will be dealing with the 2nd ground of appeal relating to the discrepancy between the English and Chinese texts shortly, but for the purposes of dealing with the 1st ground of appeal it suffices for me to refer just to the English text of s. 4(28) which reads:

"Any person who without lawful authority or excuse... (28) does any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic;... shall be liable to a fine of $500 or to imprisonment for 3 months."

27.The subsection appears in s. 4 of the Summary Offences Ordinance, which creates a long list of offences for certain acts or omissions designed to protect the interests of the general public at large. Many of the offences the section creates are there to ensure that acts of individuals do not encroach upon the rights of others to use and enjoy, without obstruction, discomfort, interference or the risk of injury, areas that are public places. For example, s. 4(1) provides that one cannot, without lawful authority or excuse, pollute a public place. Section 4(3) provides that one cannot, without lawful authority or excuse, obey a call of nature in a public place.

28.I agree with Mr Saw, for the Respondent, when he says that s. 4(28) is preventative in its nature; being designed to prevent the obstruction of public places, the seashore, or adjacent waterways. It recognizes that actual obstruction can result in the risk to, or interference with, the rights of others and it is there to prevent this happening.

29.The Magistrate dealt with the offence in this way in his Statement of Findings, at pages 16 and 17:

"It appeared to me that the offence is completed once a person, without lawful authority or excuse, does any act whereby obstruction, whether directly or consequentially, may naturally result in a public place. And the issue of whether obstruction may naturally result should be judged objectively. As in any strict liability offence, it is open for an accused to raise a defence of reasonable but mistaken belief for good and sufficient reasons AG v Kong Chin Yue & Ors [1995] 1 HKC 21, but that was not the defence raised by the Defendants here. In any case, I was of the view that Defendants' ignorance of the ceremony could not be good and sufficient reasons. On the evidence before me, I was satisfied that, on an objective standard, that the Defendants' act of chaining themselves to a flagpole, coupled with the declaration of a hunger strike, might naturally result in a hindering of the execution of the ceremony, and therefore naturally resulting in an obstruction in a public place. In my view, the rights under Articles 16 and 17 of BORO and issues in the present case were entirely different matters. I found the Defendants did the acts without lawful authority or excuse, and that the offence was completed when they chained themselves to the flagpole."

30.In advancing this ground of appeal the Appellants relied on the English Queen's Bench Divisional Court's decision in Hirst & Agu v The Chief Constable of West Yorkshire [1987] Cr L R 330. The appellants in that case were part of a demonstration by animal rights supporters protesting against the use of animal fur. They were convicted of an offence contrary to s. 137 of the Highways Act 1980, in that, without lawful authority or excuse, they wilfully obstructed the free passage along a street by protesting outside and in the doorway of a shop and by so demonstrating attracted the attention of passers-by who gathered in groups and blocked the street. In making their protest they handed out leaflets and held banners. Their appeals to the Crown Court were dismissed and they appealed to the Divisional Court by way of case stated. The Crown Court had considered itself bound by the decision in Waite v Taylor [1985] 149 JP 551 and found that to stand in the highway offering and distributing leaflets or holding a banner was not incidental to the lawful use of the highway and accordingly that each of the appellants had wilfully obstructed the highway.

31.The Divisional Court, allowing the appeal, held that the prosecution must prove that the defendants were obstructing the highway without lawful excuse. Whether or not they had a lawful excuse was to be answered by deciding whether the activity they engaged in was or was not a reasonable use of the highway. For there to be a lawful excuse for what would otherwise be an obstruction of the highway, the activity they engaged in must he inherently lawful; if it was not, the question whether it was reasonable or not did not arise.

32.The Divisional Court said that in arriving at its decision it was following its earlier decision in Nagy v Weston [1965] 1 All E R 78. In Nagy v Weston the Divisional Court accepted as correct the appellant's counsel's concession that any occupation of part of a road, which interferes with other people having the use of the whole of the road, is an obstruction and that a willful obstruction is one that is caused purposely or deliberately.

33.The Divisional Court then set out what it said was the correct approach for magistrates dealing with an offence contrary to s. 137 of the Highways Act 1980.

(1) Was there an obstruction? Unless within the de minimis rule, any stopping on the highway is prima facie an obstruction.

(2) Was it willful (i.e. deliberate)?

(3) Have the prosecution proved that the obstruction was without lawful authority or excuse? 'Lawful authority' includes permits and licences granted under a statutory provision; 'lawful excuse' embraces activities that are lawful in themselves which may or may not be reasonable in all the circumstances. Those circumstances include the length of time the obstruction continues, the place where it occurs, the purpose for which it is carried out and whether or not it in fact caused an actual obstruction as opposed to a potential one.

34.The parallels between the offence created by s. 137 of the Highways Act 1980, and the s. 4(28) offence are readily apparent, though there is no specific requirement in s. 4(28) that it must be proved that the defendant acted willfully. It was the Appellant's argument that the same principles should apply to the s. 4(28) offence. The prosecution had failed to prove that the Appellants did not have had a lawful excuse for what they did. The Magistrate was wrong in considering the offence to be one of strict liability and failed to deal with the issue of whether or not the Appellants had lawful authority or lawful excuse for their actions.

35.As the commentary to the report of Hirst & Agu v The Chief Constable of West Yorkshire makes clear, the problem with the Divisional Court's decision in both that case and Nagy v Weston, is that the requirement that the prosecution must prove that the defendant had no lawful authority or reasonable excuse, ignores the provisions of s. 101 of the Magistrates Courts Act 1980. That section provides that where the defendant to an information relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence in the enactment creating the offence, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him. The House of Lords in R v Hunt [1987] 1 All ER 1 confirmed that s. 101 imposes an onus of proof on the balance of probabilities on the defendant. And in Gatland v Metropolitan Police Commissioner [1968] 2QB 279, the Divisional Court held that the effect of s. 101 (then section 81 of the Magistrates' Courts Act 1952) was that it was for the accused to raise and prove that he had lawful authority or excuse under s. 140 of the Highways Act 1959 (s. 161 of the 1980 Act), which penalizes a person who, without lawful authority or excuse, deposits any thing whatsoever on a highway. Gatland was expressly approved by the House of Lords in Hunt, at page19.

36.The Hong Kong equivalent of s. 101 of the Magistrates Courts Act is s. 94A of the Criminal Procedure Ordinance, Cap 221, which provides:

"(1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings-

(a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3) This section applies to criminal proceedings in the District Court or a magistrate's court.

(4) The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter." (emphasis supplied)

37.It is clear that in a prosecution for a s. 4(28) offence the prosecution has the onus of proving that the defendant caused an obstruction. Although not expressly stated in the text of the offence, I apprehend that that the prosecution must also prove that it was a deliberate obstruction as opposed to an accidental one. If that is done the onus then passes to the defendant to prove, on the balance of probabilities, that he had lawful authority to cause the obstruction or a lawful excuse for causing the obstruction. The prosecution does not have to prove that he had no lawful authority or excuse to cause the obstruction. The s. 4(28) offence is not a strict liability offence in the sense that the establishment of the offence is complete once the prosecution has proved the commission of the prohibited act, for it provides for a specific defence which the defendant may raise and seek to establish.

38.In this case only the 5th and 6th Appellants testified. As they chose not to testify, I have no idea how the remaining Appellants would have chosen to seek to establish that they acted with lawful authority or lawful excuse. In the absence of an explanation given in evidence it must be taken that they chose not to establish these matters.

39.I have already summarized the 5th and 6th Appellants' evidence. Neither of them raised a claim that they had lawful authority to do what they did. And, in so far as they sought to establish a defence of lawful excuse, it was their case that they had chained themselves to the flagpole to attract the media's attention, and to "...symbolise that the right of Hong Kong people to elect their Chief Executive had been restrained." They did this because they considered that they had a right of assembly and a right to express their political views under the Basic Law and the Bill of Rights Ordinance and that no-one should interfere with these rights at will. With respect, that came nowhere near to establishing that they had a lawful excuse.

40.I have already set out the Divisional Court's view in Hirst & Agu v The Chief Constable of West Yorkshire that a lawful excuse embraces activities, that are lawful in themselves, which may or may not be reasonable in all the circumstances. I have already set out the circumstances the Divisional Court identified. If the act is unlawful in itself the question of whether or not it is it is reasonable does not arise.

41.The Appellants in Hirst & Agu v The Chief Constable of West Yorkshire did no more than hold banners and hand out leaflets, activities that are not unlawful in themselves. As that was all they did, it is not surprising that the Divisional Court found their actions to be reasonable. In this present case, however, the Appellants' protest went further than that of the appellants in Hirst & Agu v The Chief Constable of West Yorkshire; the 5th and 6th Appellants (along with the other Appellants) committed an undoubted trespass in chaining themselves to the flagpole, something they had no right at law to do in the absence of permission from the Exhibition Centre, the flagpole's owner. That was an unlawful act and on the authority of Hirst & Agu v The Chief Constable of West Yorkshire the question of whether or not it was reasonable for them to do that could not arise for consideration. In short, as what the Appellants did was an unlawful act none of them could have had a lawful excuse for committing it.

42.It is true that the Magistrate referred to the s. 4(28) offence as being a strict liability offence, which, as I have sought to show, it is not. But he did recognize that it was an offence to which the Appellants could raise a defence. He saw this as being a defence of reasonable, but mistaken, belief for good and sufficient reasons. There he was wrong, the defence is a claim of lawful authority or lawful excuse. But that is not fatal to the convictions, for all Appellants, save for the 5th and 6th, chose not to raise that defence, which was the only one available to them (neither for that matter did they raise a defence of mistaken belief). And, as I have already said, the 5th and 6th Appellants came nowhere near to establishing that they had a lawful excuse.

43.I agree with the Magistrate that the offence was made out once they, without lawful authority or excuse, did an act whereby an obstruction, whether directly or consequentially, may naturally have resulted in a public place. It was not necessary for the prosecution to prove knowledge on the Appellant's part that they might have obstructed the flag lowering ceremony had they had remained chained to the flagpole. The offence was complete at the very moment they chained themselves to the flagpole. Common sense dictates that had they not been removed from the flagpole an obstruction would accrue, either to the members of the party engaged in the flag lowering ceremony, or those members of the general public who might wish to take advantage of the Golden Bauhinia Square for their own use, or indeed to both.

44.The 1st ground of appeal fails.

2nd Ground of appeal

45.I have already set out (at Paragraph 26) the official English text of s. 4(28).

46.The English translation of the authentic Chinese text reads:

"Any person who without lawful authority or excuse...(28) does any act whereby injury or obstruction, whether directly or consequentially, accrues to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic;...shall be liable to a fine of $500 or to imprisonment for 3 months."

47.According to the Chinese authentic text, actual obstruction, be it direct or consequential, must have accrued to a public place before the offence can be made out.

48.The wording of the English text came into existence in 1932 71 years ago. It was then s. 3(25) of the Summary Offences Ordinance. The Chinese text of the section was declared to be the authentic text in Chinese on 13 November 1992 nearly 11 years ago.

49.The Magistrate rejected the defence's submission that the word "may" means "must". He also pointed out in his Statement of Findings that the respective meanings of the word "accrue" in The Dictionary of English Law and Stroud's Judicial Dictionary of Words and Phrases were given in different contexts and were inapplicable to the present case. He decided that the words "may accrue" should be given their ordinary meaning and that the offence is made out once a person, without lawful authority or excuse, does any act whereby obstruction, whether directly or consequentially, may naturally result in a public place.

50.In the light of the discrepancy which exists between the two authentic texts of the legislation the Appellants say on appeal, as they said at trial, that as the Chinese text gives the offence a narrower meaning in that actual obstruction must be caused before the offence can be made out, this should be adopted, as it is most favourable to the Appellants. Here they rely on Yeung J's decision in R v TAM Yuk Ha [1996] 3 HKC 606, where he said, at page 631 E-F:

"If the two authentic texts cannot be reconciled with one another, the only reasonable step for the court to take is to give effect to the text which favours the appellant."

51.At trial it was submitted that as there was no evidence that an actual obstruction occurred, the Appellants had no case to answer. The Magistrate rejected this submission. In doing so he relied upon Cheung J's decision in Chan Fung Lan v Lai Wai Chuen [1997] 1 HKC 1, in which Cheung J said, at page 8H:

"One must bear in mind that the authenticated Chinese text started life simply as a translation of the original legislation and if there are errors in the translation, which are bound to arise in such a mammoth undertaking, such errors should not be given effect simply because under s.10B of the Interpretation Ordinance the two texts are said to be equally authentic.

When the court comes to the view that the authenticated Chinese text contains inaccuracies then it should not give effect to that text but should rely on the original legislation. This approach is justified because under s.4B of the Official Languages Ordinance (Cap. 5) where the Governor in Council has declared a text to be an authenticated text of an ordinance and it appears to him that there is any manifest error, omission or inaccuracy in that text, he may by order in the gazette correct that error and such correction shall be deemed to be incorporated in the text at the time when it was declared to be the authenticated text."

52.In this case there is clear conflict between the two authentic texts. The original official English text creates an offence when any person does any act whereby obstruction, whether directly or consequentially, may accrue to a public place, the Chinese authentic text creates an offence when any person does any act whereby obstruction, whether directly or consequentially, acutally accrues to a public place. (emphasis supplied)

53.Section 10B of the Interpretation and General Clauses Ordinance, Cap. 1, provides:

"(1) The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.

(2) The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

(3) Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted."

54.In this case any attempt to reconcile the two conflicting texts would be doomed to failure or, at the very least, be wholly artificial. Section 10B(2), which presumes that they are to have the same meaning, provides no assistance in resolving the matter and therefore recourse has to be had to s. 10B(3), which deals with a difference of meaning.

55.Section 10B(3) provides for a two step approach; firstly there must be an attempt to resolve the difference of meaning by applying the rules of statutory interpretation. If this fails then the interpreter has to adopt the meaning which best reconciles the texts with regard to the object and purposes of the legislation. From that it necessarily follows that if the Ordinance was initially enacted in English, the English text was the original official text from which the Chinese text was subsequently prepared and declared authentic. In ascertaining the ordinance's legal meaning, the English text should be taken as more accurately reflecting the legislature's intent at the time it was originally enacted. In this case, the meaning borne by the original official English text, which was already in existence as early as 1932, should take precedence over the Chinese authentic text. The Magistrate was correct to rely on the English text.

56.In this case as there was no possibility of a rational reconciliation of the two texts, there was no basis for the Magistrate to adopt Yeung J's approach in TAM Yuk Ha of favouring the text most favourable to an accused. With respect, I believe that approach was not sanctioned by law, for s. 10B(3) provides the appropriate mechanism by which a judge must not may determine the legislative intent and give effect to it.

57.The 2nd ground of appeal fails.

3rd ground of appeal

58.The issues raised in the 3rd ground of appeal are all answered in my discussion of the 1st ground of appeal.

59.The 3rd ground of appeal fails.

4th ground of appeal

60.At trial, the case for the Appellants was that s. 4(28) could only be contravened if it was established that they were aware that their actions in chaining themselves to the flagpole would obstruct the flag lowering ceremony. It was effectively conceded that if they were aware of that then s. 4(28) did not contravene either Articles 16 or 17 of the Bill of Rights. It was said in written submissions put before the Magistrate on behalf of the first four Appellants and adopted by the remaining Appellants:

"14. The right to peaceful demonstration can be curtailed if it is necessary in the interests of public order (ordre public) and rights and freedoms of the others.

15. It is conceded that to have the flag raising and lowering ceremonies conducted in dignity and decorum is in the interests of ordre public and the rights of the others. ("ordre public" includes protection of the general welfare or interests of the collectivity as a whole: HKSAR v Ng Kung Siu & Another [1999]3 HKLRD 907).

16. However, it is argued that there is no conclusive evidence that the Defendants would hinder the flag lowering ceremony. As such, it is submitted that the provisos to Articles 16 and 17 of the Bill of Rights do not apply in this case."

61.Before me it was argued that because the Appellants were carrying out a political demonstration they were thereby permitted by Articles 16 and 17 of the Bill of Rights Ordinance and Article 27 of the Basic Law to contravene s. 4(28) with impunity.

62.Mr Saw on behalf of the Respondent submits that this is not a Bill of Rights case. He says that this is simply a case where the Appellants did an act that of chaining themselves to the flagpole whereby obstruction, be it to the ceremony or otherwise and whether directly or consequentially, might naturally result. The Bill of Rights does not entitle the Appellants to break the law and no issue of the construction of Articles 16 and 17 of the Bill of Rights or Article 27 of the Basic Law arises.

63.Article 16 of the Bill of Rights provides:

"Freedom of opinion and expression -

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals."

64.The Article does not guarantee to anyone a right to contravene legislation preventing the obstruction of public places. Article 16(3), in particular, recognizes that the exercise of the rights guaranteed by Article 16(2) carries with it special duties and responsibilities.

65.Neither does s. 4(28) restrict anyone's freedom of expression. By implication, it permits a person to carry out a political demonstration in a public place, provided that in doing so his acts do not give rise to the possibility of obstruction to that public place. What Article 16 does not guarantee, nor could it, is the right to express opinions, political or otherwise, anywhere at any time uninhibited by other domestic legislation.

66.Article 17 of the Bill of Rights provides:

"Right of peaceful assembly -

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."

67.Article 17 recognizes that the right of peaceful assembly is subject to laws which are there to protect the interests of public safety, as well as the interests of public order (ordre public); and the rights and freedoms of others whose right of peaceful access to and enjoyment of, a public place must be as equally recognized and respected.

68.Article 27 of the Basic Law provides:

"Hong Kong residents shall have freedom of speech, of the press and publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions and to strike."

In the context of the issues raised in this case, it adds nothing to the rights provided for in Articles 16 and 17 of the Bill of Rights.

69.It is well established that the guarantees provided for by Articles 16 and 17 of the Bill of Rights are qualified and not absolute. International and domestic courts in the interpretation of legislation similar to Hong Kong's Bill of Rights Ordinance have recognized that whilst some rights are absolute and cannot be proscribed by domestic legislation (for example the right to a fair trial) others can be subject to limited qualifications which are proportionate to the achievement of their intended aim. Hence, when the laws of a particular jurisdiction, properly applied, encroach upon the rights of an individual that is permissible provided it is proportionate.

70.In Brown v Scott [2001] 2 WLR 817, Lord Bingham when considering Article 6(1) of the European Convention on Civil and Political Rights said, at page 836:

"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised the constituent rights comprised, whether expressly or implicitly within Article 6 are not themselves absolute. Limited qualifications of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or circumstances. But this approach has been consistently eschewed by the Court throughout its history."

And

"The Court has also recognized the need for a fair balance between the general interests of the community and the personal rights of the individual. The search for which balance has been described as inherent in the whole of the convention."

And Lord Steyn in his opinion observed at page 833:

"When considering the objectives of the Convention noted that the frames of the Convention also realized only too well that a single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interest of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited, we live in communities of individuals who also have rights."

And

"The European Convention requires that where difficult questions arise a balance must be struck. Subject to a limited number of absolute guarantees the scheme and structure of the Convention reflects this balanced approach."

And at page 840:

"The present case is concerned with Article 6 of the Convention which guarantees to every individual a fair trial in civil and criminal cases. The centrality of this principle in the Convention system has repeatedly been emphasized by the European Court. But even in respect of this guarantee, there is a balance to be observed. First, it is well-settled that the public interest may be taken into account in deciding what the right to a fair trial requires in a particular context."

71.In Hong Kong in HKSAR v NG Kung Siu & Anor [1999] 3 HKLRD 907, where what was in issue was that a particular form of expression of opinion (the defacing of the national flag) was prohibited by law, Li CJ observed, at page 920I:

"Freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong's system and way of life. The courts must give a generous interpretation to its constitutional guarantee."

And later at page 921J:

"Freedom of expression is not an absolute. The Preamble to the ICCPR recognises that the individual has duties to other individuals and to the community to which he belongs."

72.Before me Mr Wong laid emphasis on the High Court of New Zealand's decision in Police v Beggs [1999] NZLR 615. In Beggs about 300 students arrived at the grounds of the New Zealand Parliament as part of a protest. No specific permission had been sought for the protest to be held in the Parliament grounds, but their entry into the grounds was not impeded. The Speaker of the House of Representatives, being aware of the impending protest, had delegated authority to the police to inform anyone behaving inappropriately, or in a manner not conducive to the orderly and expedient conduct of Parliament, to leave the grounds, and to remove anyone who trespassed by refusing to leave after being warned.

73.The protest was generally peaceful. The protesters demanded that the Minister of Education address them. A student protest leader on being told that the Minister would not do so said to her fellow students that: "Protesting students should take one small peaceful step forward for every minute that the Minister of Education does not appear''.

74.A member of the Speaker's staff, who had been delegated the task of overseeing protests in the grounds, became concerned about the potential for disorder following that suggestion. There was some pressure then being exerted on the crowd barriers. A student who was positioned on the police side of the crowd barriers at the staff member's request communicated to the protesters, using a loudhailer, that they had an hour to disperse from the Parliament grounds and if they did not do so there was a possibility that they would be trespassers and arrests could occur. This warning was apparently given to the protesters on at least five occasions. At the end of the hour the staff member approached the protesters and using a loudhailer asked them to leave, telling them that if they did not they could be trespassers. On his instructions the police also advised the protesters to leave the Parliament grounds or they could be arrested for trespass. Shortly after the police started arresting the protesters. Seventy-five people were arrested and charged with trespass under s. 3(1) of New Zealand's Trespass Act 1980. The trial judge dismissed the information and the police appealed against that decision by way of case stated.

75.The High Court held that in exercising the rights of the occupier of the Parliament grounds (which the New Zealand Government owned for the benefit of all citizens) the Speaker, lawfully acting through his staff member, acted in the exercise of his public function. Those rights could only be exercised consistently with the New Zealand Bill of Rights Act 1990 and because the exercise of the rights interfered with the freedom of speech, they could only be exercised when reasonably necessary in the circumstances. The Speaker had to act in good faith and exercise the power for the purpose for which it was conferred, and not for any ulterior purpose.

76.The court observed that the Speaker's exercise of the power of warning persons to leave under s. 3 of the Trespass Act 1980 must he reasonable, both in the manner of its exercise and in the prevailing circumstances. A non-exhaustive list of relevant considerations might include, whether the actions are disorderly, unlawful or interfere with others in the exercise of their rights and freedoms; whether an assembly is unreasonably prolonged; the rights and freedoms of other people enjoying the privilege of being in the Parliament grounds: the rights of the occupier and those whose business or duties take them to Parliament; the size of the assembly and its duration: the content of what is being expressed (if it is hatred, racial abuse, intolerance or obscenity) the concept of ordre public. In any situation, different factors will compete and with differing force. Those factors are likely to include, but may well not be restricted to, those identified above. Attempting to provide a formula is inappropriate and would be unhelpful. The test can only be one of reasonableness.

77.In the end result the High Court remitted the matter back to the District Court, but ordered a stay of proceedings on the basis that in view of the costs involved, and the time that had elapsed since the demonstration and the Court's decision, the public interest did not demand that the case proceed further.

78.The legislation that the Court considered provided as follows:

The Trespass Act

"3(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so."

The Bill of Rights Act

"3. This Bill of Rights applies only to acts done -

(a) By the legislative, executive or judicial branches of the government of New Zealand; or

(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

5. Subject to s. 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

14. Freedom of expression: Everyone has the right to freedom of expression including the freedom to seek, receive, and impart information on and opinions of any kind in any form.

16. Freedom of peaceful assembly: Everyone has the right to freedom of peaceful assembly.

17. Freedom of association: Everyone has the right to freedom of association.

18. Freedom of movement: (1) Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand."

79.Although more simply expressed than the provisions of Articles 16 and 17 of the Hong Kong Bill of Rights, it can be readily seen that for all intents and purposes the New Zealand provisions are to the same effect.

80.The High Court was in no doubt that the reasonableness of the action taken was the test by which the Speaker's acts fell to be determined when the Bill of Rights issue was invoked. The Court was aware that it was impossible to lay down a hard and fast rule by which reasonableness could be determined and could do no more than lay down what it termed "relevant considerations" which were to be applied in determining this issue. The Court was at pains to make it clear that it was not proposing a formula. On this issue it said, at page 628:

"Should or can there be a precise formula to govern the test of reasonableness? We think not, the factual situations that might arise are infinite. Any attempted formula will rapidly become an inconvenient shackle."

81.The Court identified among those considerations; the rights and freedoms of persons other than those who were asking the Court to protect their own rights and freedoms; the wishes of others present at the place of protest, who were not part of it and the rights of the Speaker and the Crown to operate, manage and control its property effectively. On that issue of propriety rights, just before the passage recently quoted, the Court said, also at page 628:

"In our view the rights of others must include the rights of the occupier, to enable preservation of the occupier's property and reasonable limitation upon its use."

82.In this case, as the Magistrate rightly concluded, the s. 4(28) offence was complete at the time the Appellants chained themselves to the flagpole. In doing that they not only inhibited the right of access of others to the area in which the flagpole was, they interfered with the Exhibition Centre's property and challenged the Exhibition Centre's right to impose reasonable limitations on its use. No one could seriously argue that the Exhibition Centre has no right to require that people do not chain themselves to one of its flagpoles without the Centre's permission. Having done that, the Appellants then persisted in claiming the supremacy of their rights over the rights of others for well over an hour until the police forcibly removed them from the flagpole. In my view, the action taken by the police was eminently reasonable; it was the Appellants who were acting unreasonably.

83.There is nothing in the 4th ground of appeal, which fails.

The 5th and 6th Appellants' ground of appeal

84.The ground does not identify the Magistrate's alleged error in law.

85.The factual issues in respect of s. 17C Immigration Ordinance offence could not have been simpler; the prosecution said that the 5th and 6th Appellants failed to provide proof of identity to the police officers when asked to do so in the police vehicle. The 5th and 6th Appellants said that they did, and the police officers were lying when they said that they did not. The Magistrate rejected the Appellant's evidence and accepted the prosecution's evidence. No reason is given as to why he was wrong to have done so. The matter was one of credibility and it was for the Magistrate to resolve issues of credibility.

86.The relevant parts of s. 54(2)(a) of the Police Force Ordinance provide:

"(2) If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, whom he reasonably suspects of haying committed or of being about to commit or of intending to commit any offence, it shall be lawful for the police officer-

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer:.."

87.In the section the phrase "proof of identity" has the same meaning as in s. 17B of the Immigration Ordinance. It is, for all practical purposes, a valid identity card issued under that Ordinance.

88.No offences are created under s. 54; the provision empowers a police officer, under certain circumstances, which are spelt out in the subsection, to request a person to produce proof of his or her identity.

89.Section 17C of the Immigration Ordinance on the other hand, provides in its relevant parts:

"(1) Every person who -

(a) has attained the age of 15 years and

(b) (i) is the holder of an identity card or is required to apply to he registered under the Registration of Persons Ordinance...shall have with him at all times proof of his identity.

(2) A person who is required by subsection (1) to have with him proof of his identity shall on demand produce it for inspection by -

(a) any police officer; ... who is in uniform or who produces, if required to do so, documentary identification officially issued to him as proof of his appointment as a police officer...

(3) Any person who fails to produce proof of his identity for inspection as required by subsection (2) commits an offence and is liable on conviction to a fine at level 2."

90.The section gives a uniformed police officer power to require a person over 15 to produce proof of his identity. If that person does not, or cannot, he commits an offence.

91.There is no overlap between the two provisions. Section 54(2)(a) gives a police officer an investigatory tool and provides for no sanction should the subject of the request not comply with it. Section 17C creates a specific self contained offence. I can see no reason in law, or common sense, why the prosecution were wrong in proceeding against the 5th and 6th Appellants under s. 17C of the Immigration Ordinance.

92.The 5th and 6th Appellants' ground of appeal fails.

Decision

93.Each of the specific grounds of appeal has failed and there is nothing that renders any of the seven Appellants' convictions on the s. 4(28) offence unsafe and unsatisfactorily. For the reasons already given the appeal against conviction of each of the seven Appellants is dismissed.

Representation:

Mr DG Saw, QC SC, Deputy Director of Public Prosecutions, Department of Justice, leading Mr Anthony Cheang, SGC, for the Respondent

Mr Wong Hin Lee and Mr Jeremy S K Chan, instructed by Messrs Paul W Tse, for the Appellants